REPLY
BRIEF ARGUMENT
TO THE HONORABLE COURT OF
APPEALS:
Now comes Appellant, Ronald F. Avery, and respectfully submits
Appellant’s Reply Brief Argument. This is an appeal from the 25th
Judicial District Court, Honorable B. B. Schraub, Presiding, in Cause No.
04-0499-CV, in which Ronald F. Avery was the Plaintiff and Guadalupe-Blanco
River Authority (GBRA), William E. West Jr., and David Welsch were the
Defendants.
1. Reply
Points:
1.1.
The Appellant, Avery, nor the Appellees have
ever taken a position that Appellant is special or uncommon to the citizens of Texas until the filing of Appellees’ Brief.
1.2.
Appellees’ Statement of Facts is inflammatory
and argumentive.
1.3.
Appellees’ failed to follow the Appellant’s
outline of Points and did not answer the Point of Error and the Subsidiary
Points.
1.4.
The Appellees did not show source of Sovereign
or Governmental Immunity for the State of Texas over
its Citizens.
1.5.
Appellees admit that Texas Tort Claims Act does
not establish source of Sovereign or Governmental Immunity.
1.6.
The Appellees did not show the overturning of Dickson
v. Strickland to maintain their position that the State of
Texas is now sovereign over its citizens and may thereby enjoy immunity to harm
them with intent without recourse in the courts of the people of Texas.
1.7.
The Appellant is not compelled to show
unambiguous, unequivocal waiver of Sovereign or Governmental Immunity on behalf
of the State of Texas unless the Appellees can show unambiguous,
unequivocal possession of Sovereign and Governmental Immunity by the State of Texas over the Citizens
of Texas.
1.8.
The Appellees’ three assertions based upon the notion
that the legislature may trickle down Sovereignty to the people and then soak
it back up at their will.
2. Reply
Points:
2.1.
The Appellant, Avery, nor the Appellees have
ever taken a position that Appellant is special or uncommon to the citizens of Texas
until the filing of Appellees’ Brief.
Under Appellees’ Brief Statement of Facts (page 3 top of page)
they say, “Plaintiff rejects any notion that he is a party to the Tort Claims
Act and its codification. (CR-123).” This is indeed a quote from Appellant’s
First Amended Original Petition but it was taken out of context. For the
immediately preceding sentence in the same document says, “The adoption of
monarchial common law cannot stand over the sovereign people of Texas in their
right to create the state of Texas by the social contract of the Texas
Constitution which Plaintiff claims as his herein.” Therefore, it is clear from
the context of Appellees’ quote that the Appellant is not claiming to be special
or uncommon to other citizens of Texas,
but on the contrary, a member under the social contract of the Constitution of
Texas, to which the Texas Tort Claims Act is in contradiction. The Appellant is
not denying that the Legislature of Texas can create laws that apply to him,
but rather, the legislature cannot make laws that are contradictory to the
Constitution of Texas that would apply to any citizen of Texas including the Appellant.
2.2.
Appellees’ Statement of Facts is inflammatory
and argumentive.
The Appellees’ recitation of a small portion of Appellant’s 35
page First Original Amended Petition covers only the GBRA contractors and the
“drill bit” episode in an attempt to inflame and distract the Appellate Court
from the Point of Error on Appeal.
The Appellees’s Statement of Facts is argumentive by trying to
shift the emphasis from the existence of Sovereign and Governmental Immunity to
avoid the Appellant’s claims on appeal to a fictious issue of a contract
between the Appellant and the GBRA Contractors that the Appellees hope or
presume to have existed. Had there been a real contract between GBRA
contractors and Appellant it would not impact this appeal. TRAP 38.1 (f) requires that this statement of Facts not
include argument of an issue not pertinent to the issue or point presented.
2.3.
Appellees’ failed to follow the Appellant’s
outline of Points and did not answer the Point of Error and the Subsidiary
Points.
It would be practical in the Appellees’ Brief to answer each
of the Appellant’s Subsidiary Points brought under his One Point of Error to
show, if they could, that the State of Texas
did in fact have Sovereignty and Immunity over its citizens to harm them
without recourse except where waived. If Appellees can show what Sovereignty is
and that the State of Texas
possesses it over its citizens they should have answered each of Appellant’s
questions and complied with TRAP 38.2 (a) 2 of the Texas Rules of Appellate Procedure:
“When practicable, the appellee’s brief should respond to the
Appellant’s issues or points in the order the appellant presented those issues
or points.”
The Appellees have failed to answer the Appellant’s vital
questions related to Sovereignty and Governmental Immunity.
2.4.
The Appellees did not show source of Sovereign
or Governmental Immunity for the State of Texas over
its Citizens.
The Appellees Brief did not show the source of Sovereign or
Governmental Immunity to intentionally, or otherwise, harm the citizens of Texas without recourse
in “her” courts except where the Legislature waives such immunity. None of their
cases establish the source of such immunity to be anywhere but where stated in
Appellant’s Second Amended Brief (page 33), i.e., in Hosner v. DeYoung 1 Tex. 1847. However, this case does not give one
citation of any authority including statutes, constitutional provisions or case
law, for its existence as verified by the Southwestern Law Journal (Appellant’s
Seconded Amended Brief page 33 and Appendix page 12 and 91).
2.5.
Appellees admit that Texas Tort Claims Act
(TTCA) does not establish source of Sovereign or Governmental Immunity.
The Appellees admit (page 7 second paragraph) that The TTCA
does not establish state sovereign or governmental immunity. They have admitted
that Sovereign and Governmental Immunity is a Presumption:
“It is a common misconception that the Texas Tort Claims Act
creates liability. On the contrary, the Texas Tort Claims Act merely waives to
a limited degree the general presumption
of immunity to which a governmental unit is entitled. In other words,
immunity is the rule; waiver of immunity, which must be proven by a claimant,
is the exception.” (Bolding added)
Appellees admit that the TTCA merely waives some degree of
“the general presumption of immunity.” The question is, “Can the State of Texas Presume a right to harm the citizens
of Texas, with
or without intent, without recourse to “her” courts?” The Appellant has shown in
Dickson v. Strickland that anything of such magnitude infringing
upon the rights of the People of Texas cannot be presumed but must be explicitly
declared in the fundamental or constitutional law of Texas (A-10
2.4.4):
“It would be in the power of such convention to take away or
destroy individual rights, but such an
intention would never be presumed; and to give effect to a design so unjust
and unreasonable would require the support of the most direct, explicit
affirmative declaration of such intent.”
(Bolding added)
Therefore, Appellees have failed to show the source of
Sovereign or Governmental Immunity as there is no source that is not
contradictory to the present Constitution of Texas. In fact this same Texas
Supreme Court case establishes the fact that the Citizens of Texas are
Sovereign:
“With the ultimate
political sovereignty of the people so forcefully declared throughout our
history, the court would be unmindful of its high responsibility were it
not careful in examining any claim of restriction on the liberty and authority
of those who establish governments, and can change them in the mode prescribed
by the fundamental law.”
(Bolding added)
Further, this same Texas Supreme Court case establishes that
the constitution declares the citizens to be sovereign in Article 1 Section 2:
“In the Constitution of the Republic is a statement of rights
never to be violated on any pretense whatever. There we find it recorded that “all political power is inherent in the
people, and all free governments are founded on their authority, and instituted
for their benefit.” The declaration is carried into every Constitution,
appearing as section 2 of article 1 of the Constitution of 1876.”
(Bolding added)
It is therefore clear that something as unjust as governmental
immunity to harm its own citizens is not something that can be presumed.
Immunity to harm citizens must be declared in the Constitution or Fundamental
Law. But we see that the contrary is stated in the Fundamental Constitutional
Law, namely, that the citizen is sovereign and has established government to
protect his life, liberty, possessions and reputation. When the property of a
citizen is harmed by the state, the constitution has provided courts for
justice and repair of that property or property right. The state must answer
and repair the damage done by their employees, agents and contractors.
2.6.
The Appellees did not show the overturning of Dickson
v. Strickland to maintain their position that the State of Texas is now sovereign over its citizens and may thereby
enjoy immunity to harm them with intent without recourse in the courts of the
people of Texas.
The Appellees Brief did not show a constitutional amendment
that would overturn Dickson v. Strickland.
All their authorities were merely cases applying the TTCA and the CPRC (Texas
Civil Practice and Remedy Code). Those cases cannot overturn the Constitutional
Provisions of Article 1 Sections 2, 13, 17 and 19. Therefore, the Appellees
have failed to show the existence of Sovereign or Governmental Immunity to harm
the citizens of Texas
without recourse in the courts except where waived by the legislature.
Therefore, immunity is not available for the state of Texas
or any of its subdivisions when it harms a citizen of Texas.
2.7.
The Appellant is not compelled to show
unambiguous, unequivocal waiver of Sovereign or Governmental Immunity on behalf
of the State of Texas
unless the Appellees can show unambiguous, unequivocal possession of Sovereign
and Governmental Immunity by the State of Texas over the Citizens of Texas.
The Appellees’ expect the Appellant to show unambiguous,
unequivocal waiver of Sovereign Immunity by the state in the areas of Appellant’s
claims, yet they cannot show anything other than a groundless or unlawful assumption
or presumption of state sovereignty or governmental immunity. The Appellees’
Brief says on page 7:
“Furthermore, any waiver of immunity from suit must be clear and
unambiguous. Federal Sign, 951 S.W.
2d. at 405. The Texas Supreme Court interprets the Texas Tort Claims Act
narrowly. Amador v. San
Antonio State Hosp.,
993 S.W. 2d 253, 257 (Tex.
App.-San Antonio 1999, pet. Denied). If it is questionable whether sovereign
immunity has been waived, it has not been waived. Schaefer v. City of San Antonio, 838
S.W. 2d 688, 693 (Tex.
App.-San Antonio 1992, no writ).”
It is ludicrous to expect the Appellant to show unequivocal
waiver of state immunity when the state can only presume or hint around at the
possession of immunity. But the Appellees admit that the real question is the
existence of the immunity doctrine at page 8 of their Brief:
“Once this Court recognizes, as it surely will, that the
immunity doctrine is alive and well, it can summarily reject Avery’s appeal
without hesitation and need not examine any of GBRA’s arguments as to why, assuming the immunity doctrine exists,
Avery’s pleading fails to invoke an exception or waiver of immunity covering
his claims.”
(bolding added)
The Appellees are correct, “assuming the immunity doctrine
exists,” the Appellant would not win his appeal. But it is the answer to that
question that will permit the Appellant to return to the trial court for
further proceedings.
2.8.
The Appellees’ three assertions based upon the
notion that the legislature may trickle down Sovereignty to the people and then
soak it back up at their will.
The Summary of the Argument in the Appellees’ Brief asserts
only three grounds to which they think the Trial Court’s dismissal must be
upheld: First, sovereign immunity is firmly entrenched or stare decisis, which was fully addressed and defeated in the
Appellant’s Second Amended Brief and Appendix. Second, the Legislature is the
only branch of state government that can determine if the state or one of its
subdivisions can be sued. Third, Appellant’s First Amended Original Petition in
Trial Court fails to show subject matter jurisdiction.
The Appellant has shown in his Second Amended Brief and
Appendix that all these assertions are without merit because the Judiciary of
Texas is the only branch with jurisdiction to determine the existence of
Sovereign and Governmental immunity. The Constitution of the State of Texas (Art. 1 Sect.
2,13,17,19, & Art. 2 Sect. 1) determines subject matter jurisdiction not
the TTCA or the CPRC. If the Judiciary determines that the state of Texas is sovereign over the people and has immunity to
harm them without recourse to the courts of Texas unless waived, then the legislature
can make any law they want and the people are helpless and the constitution is
worthless. Subject matter jurisdiction then can be determined by the state
legislature. But if the Judiciary finds that the People of Texas are sovereign
over the state they create for their benefit, then the state and its
subdivisions may be sued when it harms the citizen and the legislature cannot
determine when subject matter jurisdiction is obtained. The Judiciary comes
first and they can and must determine if the people of Texas are sovereign or if the state is
sovereign over them. Once that is determined all other matters can be properly
addressed.
RELIEF SOUGHT:
The Appellant prays that the Court of Appeals:
1. Find
the Appellees’ Brief in want of substantial law;
2. Find
the Appellees’ Brief to be unresponsive to the Appellant’s valid questions and
point of error in his Second Amended Brief and Appendix;
3. Find
the merit of the Appellant’s exhaustive proof of the want of Sovereign and/or
Governmental Immunity of the State of Texas
over its citizens;
4. Find
that there is no need to show waiver of state immunity under the TTCA or CPRC
when the State does not possess the slightest scintilla of Sovereign or
Governmental immunity;
5. Reverse
the Order of the Trial Court granting a dismissal of the Appellant’s law suit
based upon Appellees’ Plea and Supplemental Plea to the Jurisdiction by signing
said Order on July 27, 2004;
6. Remand
this cause to the Trial Court for further proceedings.
Further, the Appellant prays for any other relief that he may be
entitled to.
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Respectfully
Submitted,
Ronald
F. Avery
Pro
Se
__________________________
1955
Mt. Vernon
Seguin, Texas
78155
830/372-5534
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CERTIFICATE
OF SERVICE
I hereby certify that a true and correct copy of the foregoing was
forwarded by certified mail,
return receipt requested # 7099 3220 0001 5083 3431, on
this the _______ day of ____________ , 2005 to the following:
William S. Helfand &/or Kevin D. Jewell
Chamberlain, Hrdlicka, White, Williams & Smith
Attorneys at Law
1200 Smith Street,
Suite 1400
Houston, Texas 77002
______________________________
